[Cite as State v. Rush , 2012-Ohio-5919.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 25179 vs. : T.C. CASE NO. 2011CR721 DEMETRIOUS H. RUSH : (Criminal Appeal from the Common Pleas Court) Defendant-Appellant :

. . . . . . . . . O P I N I O N Rendered on the 14 th day of December, 2012.

. . . . . . . . . Mathias H. Heck, Jr., Prosecuting Attorney, by Andrew T. French, Assistant Prosecuting Attorney, Atty. Reg. No. 0069384, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee Herbert Creech, Atty. Reg. No. 0005198, 200 F Jamestown Circle, Dayton, Ohio 45458 Attorney for Defendant-Appellant

. . . . . . . . . GRADY, P.J.: {¶ 1} Defendant Demetrious Rush appeals his conviction and sentence for improper handling of a firearm in a motor vehicle, R. C. 2923.16(B), a felony of the fourth degree. {¶ 2} In April 2011, Defendant was indicted on one count of carrying a concealed weapon. He filed a motion to dismiss, challe nging the constitutionality of the CCW statute,2 and a motion to suppress, both of which we re overruled. After the suppression hearing Defendant was re-indicted, adding a charge of improper handling of a firearm in a motor vehicle. Defendant filed a mo tion to dismiss the second indictment, claiming that the R.C. 2923.16(B) is unconstitutional under the Sec ond Amendment to the United States Constitution. The trial court overruled Defendant’s motion. {¶ 3} Defendant pled no contest to the imp roper handling charge and the State dismissed the carrying a concealed weapon charge . The trial court se ntenced Defendant to community control sanctions. Defendant appeals, raising one assignment of error. {¶ 4} Defendant’s assignment of error:
“THE STATUTE UPON WHICH APPELLANT’S CONVICTION IS BASED IS INVALID IN THAT IT IS AN UNCONSTITUTIONAL INFRINGEMENT UPON THE FUNDAMENTAL RIGHT TO KEEP AND BEAR ARMS PROTECTED BY THE SECOND AMENDMENT TO THE UNITED STATES CONSTITUTION AND THUS NECESSITATES A REVERSAL OF HIS CONVICTION.” {¶ 5} Defendant was convicted of improper handling of a firearm in a motor vehicle, in violation of R.C. 2923.16(B), which states: “N o person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the ve hicle.” He maintains that the statute is unconstitutional because it infringes upon his S econd Amendment right to keep and bear

arms. {¶ 6} “It is fundamental that a court must ‘p resume the constituti onality of lawfully enacted legislation.’” Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633, ¶3 4, quoting Arnold v. Cleveland, 67 Ohio St.3d 35, 38, 616 N.E.2d 163 (1993). Therefore, the challenged legislation will not be invalidated unless th e challenger proves beyond a reasonable doubt that the conteste d statute is unconstitutional. Id. , citing Arnold at 39. {¶ 7} The Second Amendment to the United St ates Constitution provides: “A well regulated Militia, being nece ssary to the security of a free Stat e, the right of the people to keep and bear Arms, shall not be infringed.” The United States Supreme Court has held that the Second Amendment right to bear ar ms is a fundamental right. McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020, 3036-3037, 177 L.Ed.2d 894 (2010), citing Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.E.2d 637 (2008). Accord, Klein at ¶ 7, citing Arnold (both interpreting the right to bear arms encompassed within Section 4, Article I of the Ohio Constitution)

. However, an individual’s right to bear arms is not unlimited. State v. King, 2d Dist. Montgomery 24141, 2011-Ohio-3417 , ¶ 22, citing Heller at 626 ; Klein at ¶ 7-8. {¶ 8} In King , we held that R.C. 2923.16(B) does not constitutionally infringe on an individual’s right to bear arms. King at ¶ 25, citing Klein at ¶ 3, reasoned that the statute does not prohibit all transportation of firearms in motor vehicles. Instead, it limits the manner in which loaded firearms may be transported. Regulations regarding the manner in which firearms may be carried are adopted in exercise of the State’s police power. Id. at ¶22, citing Klein at ¶13, in turn citing Arnold at ¶ 47 and State v. Nieto, 101 Ohio St. 409, 413, 130 N.E. 663 (1920). Such regulations “are c onstitutionally permissible if they impose reasonable limitations upon an individua l’s right to bear arms.” Id., citing Klein at ¶ 14; Arnold at ¶ 47-48.4 {¶ 9} We held in King that the limits upon an individual’s right to transport a loaded gun within reach of the driver or a pa ssenger that R.C. 2923.16(B) imposes “are both appropriate and reasonable.” Id. at ¶ 23. The statutory limitation is “rationally related to a legitimate government interest in safety – the safety of the person possessing the firearm, the safety of other passengers in the vehicle, the safety of other cars on the roadway, and the safety of police officers who en counter these individuals.” Id. at ¶ 28, citing State v. Brown, 168 Ohio App.3d 314, 2006-Ohio-4174, 859 N.E.2d 1017; State v. White, 3d Dist. Marion No. 9-96-66, 1997 WL 180307 (March 28, 1997). {¶ 10} Defendant asks us to reconsider our holding in King. He contends that King applied a rational basis test, while challenges brought pur suant to the Second Amendment, because it confers a fundamental right, must be decided by applying the “strict scrutiny” standard of review. Defendant relies on Dist. of Columbia v. Heller . However, Heller did not expressly prescribe a strict scrutiny standard of review for Second Amendment challenges. {¶ 11} A threshold question is whether Defenda nt’s argument is that R.C. 2923.16(B) is unconstitutional on its face or merely unconstitutional as applied to him. Defendant does not contend that the statute unconstitutionally restricts the right to transport guns in a motor vehicle absolutely. Instead, he argues that the statute infringes on his legitimate right of self-defense protected by the Second Amendment. In that re spect, Defendant’s contention is that R.C. 2923.16(B) is unconstitutiona l as applied to him. However, on this record, that is an issue we are unable to decide. {¶ 12} The indictment provides us with the onl y information contained in the record regarding the factual basis for Defendant’s conviction for imprope r handling of a firearm in a5 motor vehicle. Defendant ha s provided us with no transcript s of any of the trial court proceedings. We therefore are unable to discern and weigh how Defendant’s right of self-defense was allegedly infri nged. Based on the record befo re us, we can only conclude that, factually, Defendant’s c onviction falls within the appr opriate and reas onable limitations that R.C. 2923.16(B) places on the manner in which loaded firearms may be transported in a motor vehicle. King. {¶ 13} His having failed to prove beyond a reasonable doubt that the challenged statute is unconstitutional, Defendant’s sole assignment of error is overruled. The judgment of the trial court will be affirmed.

Froelich, J., and Ha ll, J., concur.

Copies mailed to: Andrew T. French, Esq. Herbert Creech, Esq. Hon. Frances E. McGee